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Ben Hargreaves and Alexandra Scott consider the implications of Plaku in practice.
The judgment handed down on 23rd April 2021 in R v Plaku & Ors  EWCA Crim 568 has determined, perhaps finally, that the first opportunity for entering a plea of guilty is at the first effective appearance at the Magistrates’ Court.
“In a number of cases in recent years, this court has made clear that for the purposes of determining the appropriate reduction in sentence, an indication of a guilty plea must be an unequivocal indication. We endorse that principle. An indication of a “likely” or “probable” plea is not enough, as by definition such an indication keeps open the possibility of a not guilty plea and thus negates the advantages referred to in the “key principles” section of the guideline. Words such as “likely” or “probable”, or anything else which places a qualification on the intended plea, should therefore be avoided.” (para 17).
The line of authorities leading up to – and referred to in – this judgment has been reviewed in detail in an earlier article, focusing on the position of defendants: the implications for advocates should also be considered.
It puts an inordinate amount of pressure on those who attend the Magistrates’ Courts. In simple cases the issues are relatively straight forward but for some either way or indictable matters there is a great deal at stake. An 8 % difference in a case that is for example worth 5 years is approximately 6 months – (45 months to 39.5 months) and is not to be taken lightly. This is particularly pertinent in cases which could fall either side of 4 years (the maximum sentence for which a prisoner might still be eligible for a ‘home detention curfew’, allowing release after one-third of the sentence is served) or 7 years for offences which are violent or sexual in nature (from 1st April 2020, a prisoner must serve two-thirds rather than half of any sentence of 7 years or over, pursuant to SI 2020 No. 158 – The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020).
Consider the case of R v Hodgin  EWCA Crim 138. Here H appeared at a Magistrates’ Court the day after his arrest and charge of conspiracy to commit burglary. As an indictable only matter the Better Case Management form was filled in and the solicitor indicated “likely guilty plea”. At PTPH, H pleaded guilty on a basis that limited his involvement to only a number of burglaries. At sentence HHJ Woodward stated that “one of you indicated it was very likely you would plead guilty…that is essentially meaningless…you pleaded guilty at the Crown Court and are entitled to 25 % credit”. The Court of Appeal rejected the appeal stating that an indication of plea is not unequivocal and therefore not enough to secure full credit.
Hodgin was concerned with over 40 acts of criminality. It is clearly unrealistic to go through that volume of material, assuming it is served ahead of or at the first appearance: in Hodgin the case summary was provided some days after the first appearance. To advise a defendant in a measured and proper way on a charge sheet alone is not possible. The Court of Appeal’s attitude in Hodgin, that while a conspiracy can sometimes “be a difficult and complex matter” the appellant “knew what he had done” seems regressive.
These authorities do not seem to have any awareness of, or to take into account, the realities of the modern First Appearance. The majority of the advocates will either be harried solicitors, juggling their large workloads and litigation commitments, or the most junior members of the Bar, pupils just on their feet. Committing your lay client to a guilty plea for an offence that can attract a sentence of anything up to and including life is a huge step to take without sight of any evidence, and arguably crosses the bounds of professional conduct.
There is a strong argument to keep the general principle of credit diminishing from the first appearance, but to allow judges to have the freedom to distinguish between individual cases or make sensible allowances.
Paragraph 7 of Plaku touches on the limited remaining discretion in passing: The section F exceptions referred to in that quotation cover a number of situations. The application of any of those exceptions in a particular case will of course be a fact-specific decision, and a court making that decision will be careful not to go beyond the limited terms of the exception. Fairness to all defendants, in all courts, requires that the exceptions should not be extended beyond their proper scope.”
Respectfully, given the realities of the Magistrates’ Courts – its limitations and pressures – instead a proper and fair approach would be to allow the sentencing Judge to decide on a case by case basis where and when credit should bite. A defendant who is perhaps vulnerable, accused of a very serious crime, or who has never been in trouble before should not be treated in the same way as a ‘veteran time waster’. The Judges have the capacity to differentiate and should be allowed to do so.
Ben Hargreaves is a highly-regarded leading junior, with a practice encompassing serious sexual offences, organised crime, murders, and high-end financial crime.
Alexandra Scott is frequently instructed in substantial organised crime cases and conspiracies. She has significant experience of dealing with sentencing appeals in the Court of Appeal Criminal Division, including on the issue of credit, appearing in the successful appeal of Mihai-Darie Raduca  EWCA Crim 279.
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